When is an Employee Expert an Expert Who Must Prepare a Report?

In the epic legal battle over patents and floppy disk controller defects dating back to the 1980s and 1990s, the Defendants brought a motion to compel the Plaintiff, who was an employee of his own company, who did not regularly testify as an expert on the company’s behalf, to prepare an expert report for the Defendants. The Defendants also wanted the Plaintiff to submit to an additional four days of deposition testimony. Phillip M. Adams & Assocs., L.L.C. v. Fujitsu Ltd., 2010 U.S. Dist. LEXIS 27022, at *10-11 (D. Utah Mar. 20, 2010).

The Plaintiff had already testified for seven days.

The Defendants argued that since the Plaintiff had testified in seven other lawsuits as an expert witness, he was required to submit an expert report. Adams, at *12. However, in only one of those cases was the Plaintiff’s employer a party in the lawsuit.

What Were You Hired to Do?

The Plaintiff was not required to submit an expert report, but the Defendants were allowed an additional two days of deposition testimony.

The Court’s reasoning focused on Federal Rule of Civil Procedure Rule 26(a)(2)(B), which states an expert report is required of a witness who “is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” Adams, at *12-13.

The Court held that expert reports are required for an “expert” who “is acting as such on a regular basis — for parties to litigation who engage the expert as a professional outsider and for parties to litigation who use ‘in-house’ professional experts to testify on their behalf.” Adams, at *18-19.

The Court explained the Rule is for experts who are on staff to provide expert witness testimony for their employers who are litigating enough that they hire staff experts. Adams, at *18-19.

As the Court stated, “[Federal Rule of Civil Procedure Rule 26(a)(2)(B)] should be read to require an expert report from an employee-expert only when the witness is the functional equivalent of a hired professional expert…” Adams, at *19.

In the present case, the Plaintiff was the owner and inventor of the company. He was not employed to provide expert testimony. Adams, at *19. As such, the Plaintiff could not be compelled to issue an expert report.

Bow Tie Thoughts

There are many companies and law firms that have hired (or are hiring) in-house electronic discovery professionals to control discovery costs in cases where “in-sourcing” is cost effective. These individuals can be skilled in different stages of the electronic discovery workflow, such as collection, processing or data reduction.

This raises an interesting question: if a company has hired an in-house “expert” who performs specialized e-discovery tasks, such as collection protocols or processing methodologies, which also requires testifying on those specialized discovery tasks, can they be required to submit an expert report under Federal Rule of Civil Procedure Rule 26(a)(2)(B)?

One could argue that an in-house professional, such as someone skilled in collection or culling data with key words during processing, is the “functional equivalent of a hired professional expert.” As such, that expert would be required to submit an expert report, detailing the expert services performed, when they were deposed.

If this ever comes up, the analysis would likely follow whether the individual was hired to be a testifying expert, similar to the Court’s expert example of “automobile or tire manufacturers who are on staff to provide expert witness services for their frequently litigating employer.” Adams, at *19.

Regardless of the answer, parties should discuss issues pertaining to collection, preservation and production formats at their Federal Rule of Civil Procedure Rule 26(f) conference to avoid expensive motion practice later in the case.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

Query: How much of the court’s analysis was based in the reality of the Plaintiff’s position (vis a vis: the Plaintiff)? Would the analysis have differed if the Plaintiff had not been the Plaintiff (and thusly deserving of some of the protections we afford plaintiffs in standard discovery)?

I realize that in almost every other scenario of which I can conceive, the Plaintiff would likely have been either a retained expert or an employee, but maybe there could exist a hypothetical “good samaritain” pseudo expert?